William A. Goichman appeals from the district court's grant of summary judgment dismissing his legal and equitable claims brought under 42 U.S.C. Sec. 1983 (1982) against the city of Aspen, Colorado. 590 F. Supp. 1170. Claiming that various sections of Aspen's towing ordinance violated the due process clause of the fourteenth amendment, plaintiff sought declaratory and injunctive relief, restitution and punitive damages, and the certification of a plaintiff class under Rule 23(b)(3), Fed.R.Civ.P. Plaintiff also asked for attorney's fees under 42 U.S.C. Sec. 1988 (1982).

On summary judgment,1 the district court held that the request for declaratory and injunctive relief had been mooted by Aspen's repeal of its prior ordinance and enactment of a revised ordinance which the court found to be constitutional.2 The court also declined to certify a plaintiff class because no common questions of law or fact predominated. Finally, the court denied plaintiff's request for attorney's fees. We affirm the district court's judgment with respect to its disposition of plaintiff's claims, albeit on different grounds. With respect to Aspen's cross-appeal, we remand for court determination of defendant's entitlement to attorney's fees.

The incidents prompting Mr. Goichman's complaint were summarized by the district court as follows:

[Mr. Goichman] was in Aspen as a tourist on December 27, 1981, when he parked a leased vehicle on a public street. The next day, he discovered that his vehicle had been towed from its parking space by employees of [Aspen]. [Aspen] states that the vehicle was towed and impounded because it was parked in violation of Sec. 22-26-4 of the Aspen Municipal Code, which prohibits parking between the hours of 3:00 a.m. and 7:00 a.m. at the location in question.

[Mr. Goichman] asserts that when he appeared at the offices of the Aspen Police Department on December 28, he was informed that he would be required to pay a $20.00 parking fine and a $40.00 towing fee before the vehicle would be released. Further, Plaintiff states that he was told by an unidentified employee that no judicial hearing would be provided to determine whether the towing and impoundment was appropriate and legal.

Record, vol. 2, at 205.

Plaintiff paid the fine and towing fee, choosing not to contest the underlying parking violation.3 Eleven months later he brought this section 1983 action alleging that Aspen had deprived him of personal property without providing for a "judicial hearing, prior to payment for the release of the vehicle, to determine the legal justification for the ... seizure and impoundment of the car." Brief of Appellant, at 5.

When examining the district court's grant of summary judgment, we apply a de novo standard of review to all legal determinations. Wheeler v. Hurdman, 825 F.2d 257, 260 (10th Cir.1987). Moreover, in examining the factual setting in which legal questions arise, we construe the pleadings and the evidence on record liberally in favor of the party opposing summary judgment. Franks v. Nimmo, 796 F.2d 1230, 1235 (10th Cir.1986). In this case, the material facts, i.e., those "that might affect the outcome of the suit under the governing law," are not disputed. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). It is the legal conclusions that may properly be drawn from those facts that we must decide. Finally, we may affirm the granting of summary judgment if any proper ground exists to support the district court's ruling. McKibben v. Chubb, 840 F.2d 1525 (10th Cir.1988).

Due process is a flexible concept, and its procedural protections will vary depending on the particular deprivation involved. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972). In the context of another challenge to a towing ordinance, this circuit previously determined that a city "need not provide a hearing before requiring that the owner of an impounded vehicle pay the fees to recover the car." Weinrauch v. Park City, 751 F.2d 357, 360 (10th Cir.1984). Requiring an individual to post the equivalent of a bond4 (to cover towing charges and parking fees) pending a hearing on the underlying violation does not violate due process. The reasoning of the District of Columbia Circuit in Cokinos v. District of Columbia, 728 F.2d 502 (D.C.Cir.1983), is persuasive: "The regulation allows towing of illegally parked vehicles; the validity of the tow, therefore, is dependent on the validity of the determination that the car in question was found parked in violation of a traffic regulation." Id. at 503. Thus, as long as there is an opportunity for a hearing provided to challenge the underlying violation, due process is served.

In this case, Aspen, acting pursuant to a legitimate exercise of its police power, enacted parking regulations which it enforced through the towing of illegally parked vehicles. At no time has the plaintiff challenged the legality of Aspen's authority to enact these regulations. Adequate notice of the regulations was given through properly posted signs. Record, vol. 2, at 232. Thus, Mr. Goichman was on notice that parking his vehicle overnight in a marked zone constituted a violation capable of subjecting him to a fine and/or the towing of his vehicle. When his vehicle was, in fact, towed, Mr. Goichman promptly appeared at the Aspen Police Department and demanded the vehicle's return. Although he had notice that he could challenge the underlying parking violation in Municipal Court,5 Mr. Goichman instead asked for a judicial hearing to challenge the impoundment and towing of his vehicle. Under these circumstances, Aspen was under no duty to afford plaintiff an additional hearing on this matter since an adjudication of the parking violation would resolve the matter.

We hold that the reasonable availability of a hearing to adjudicate the underlying parking violation satisfies the strictures of due process.6 As a result, no additional hearing, judicial or otherwise, was necessary to determine the validity of Aspen's impoundment and towing procedures.7 Since Mr. Goichman's due process rights were not violated, the section 1983 action cannot lie. Likewise, there is no basis for a class action.

We are aware that our analysis and conclusion departs from the approach employed by a number of courts in adjudicating cases involving due process challenges to towing ordinances.8 In our view, the prevailing Sniadach-Fuentes-Di-Chem analysis is inappropriate to situations such as the present one. The factual and policy bases of the two types of situations differ sufficiently that an uncritical application of that precedent confuses, rather than illuminates, the issues before the court.

Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969), involved a challenge to Wisconsin's garnishment statute which permitted a private party to freeze up to fifty percent of a debtor's wages without affording the wage earner immediate notice or a hearing to contest the action. The garnisheed wages could be unfrozen if the wage earner prevailed at a later trial on the underlying obligation. Nevertheless, the absence of a procedure to provide adequate notice and hearing led the Supreme Court to find that the pre-judgment garnishment constituted a taking of property in violation of "fundamental principles of due process." 395 U.S. at 342, 89 S.Ct. at 1823.

Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972), involved an analogous challenge to Florida and Pennsylvania's replevin statutes. Both acts permitted a private party to obtain a pre-judgment writ of replevin through ex parte summary procedures requiring minimal, if any, showing of entitlement and no opportunity for rebuttal. Finally, in North Georgia Finishing v. Di-Chem, Inc., 419 U.S. 601, 95 S. Ct. 719, 42 L. Ed. 2d 751 (1975), the Supreme Court revisited the problems associated with the issuance of writs of garnishment pending a suit on the merits of entitlement, when the writ issued on the strength of a private party's conclusory affidavit and without provision for an early hearing to challenge the taking. The Court, relying on Sniadach and Fuentes, struck down the statute as violative of due process.

Stripped of surplusage, all three cases present analytically similar fact patterns. In each instance, two private parties assert a claim to a res, and one party invokes the state's power to seize the res before an adjudication of entitlement. Injecting the state, as an intervenor, into what is essentially a private dispute alters the balance of power in the parties' relationship.9 Achieving that result merely on the basis of conclusory allegations of entitlement clearly harms the property interests of one of the parties.10 Understandably, under those circumstances the Supreme Court has held that due process requires a pre-seizure hearing.

Towing cases present a situation which is clearly distinguishable from the one found in Sniadach, Fuentes, or Di-Chem. In towing cases, the state is acting pursuant to a legitimate exercise of its police power. The impoundment and towing of illegally parked vehicles is an action taken in order to promote safety and public welfare. Contrary to the situation in the replevin-garnishment cases, here the state seeks to enforce its own significant interest rather than simply to exercise its power on behalf of a private party.11 Also unlike those cases, the state makes no underlying claim to the res. The charges assessed are reasonably related to the costs of enforcement, and when satisfied or exonerated, no further claim is made. Finally, and again unlike Sniadach, it is uncontested that there is ready access to a hearing to determine the validity of the underlying violation. Cf. Mitchell v. W.T. Grant Co., 416 U.S. at 614, 94 S.Ct. at 1903 (contrasting the facts in Sniadach and Mitchell, the court noted that it was not apparent in Sniadach with what speed the debtor could challenge the validity of the garnishment). We believe that the present circumstances implicate much more attenuated property interests than were at issue in Sniadach and its progeny.

We turn now to the actions of the city of Aspen in repealing and reenacting its towing and impoundment ordinance. Aspen does not dispute that Mr. Goichman's lawsuit was the catalyst in the City Administration's reexamination of the towing ordinance. Record, vol. 1, at 121. Mr. Goichman relies on this fact as justification for his claim to attorney's fees as a "prevailing party" under 42 U.S.C. Sec. 1988.12

The Supreme Court has recognized that a plaintiff may "prevail" in the absence of a full litigation of the issues or a judicial determination that plaintiff's rights have been violated. Maher v. Gagne, 448 U.S. 122, 129, 100 S. Ct. 2570, 2575, 65 L. Ed. 2d 653 (1980). In J & J Anderson, Inc. v. Town of Erie, 767 F.2d 1469 (10th Cir.1985), we adopted the test used in Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir.1978), for determining whether a plaintiff qualifies as a "prevailing party" when there has been no judgment on the merits.13 To satisfy the test, plaintiff must demonstrate that (1) his lawsuit is linked causally to securing the relief obtained and (2) the defendant's conduct in response to the lawsuit was required by law. J & J Anderson, Inc., 767 F.2d at 1473.

Because the facts of this case leave little doubt that the first element of the test has been met, we move to an examination of the second element. To satisfy it, Mr. Goichman has to establish that Aspen's conduct in response to the lawsuit was required by the constitution or federal law. Supre v. Ricketts, 792 F.2d 958 (10th Cir.1986). In light of our previous discussion and holding concerning plaintiff's due process challenge, it is clear that Aspen's actions in amending the ordinance constituted gratuitous conduct on its part. The term "gratuitous conduct" has acquired a definition by our cases as an action not required by law. Id. at 964 (Seth, J., concurring).

Certainly, Aspen's revised ordinance provides additional safeguards which further ensure the protection of an individual's procedural rights. To the extent that plaintiff, in bringing his suit, sought to protect these cherished constitutional values, he can derive satisfaction from the fruit of his labors. Nevertheless, "[i]f it has been judicially determined that defendants' conduct, however beneficial it may be ... is not required by law, then defendants must be held to have acted gratuitously and plaintiffs have not prevailed in a legal sense." Supre, 792 F.2d at 964 (Seth, J., concurring) (citing Nadeau, 581 F.2d at 281). Consequently, the district court correctly denied plaintiff's request for attorney's fees.

Aspen has cross-appealed the district court's denial of its claim for attorney's fees under 42 U.S.C. Sec. 1988. According to the Supreme Court, "[a] prevailing defendant may recover an attorney's fee only where the suit was vexatious, frivolous, or brought to harass or embarrass the defendant." Hensley v. Eckerhart, 461 U.S. 424, 429 n. 2, 103 S. Ct. 1933, 1937 n. 2, 76 L. Ed. 2d 40 (1983). See also Prochaska v. Marcoux, 632 F.2d 848 (10th Cir.1980), cert. denied, 451 U.S. 984, 101 S. Ct. 2316, 68 L. Ed. 2d 841 (1981). We recognize that the decision to award or deny attorney's fees lies within the sound discretion of the court, and, on appeal, review is subject to an abuse of discretion standard. Supre, 792 F.2d at 961. Nevertheless, the record is devoid of discussion concerning the court's reasoning in arriving at its decision. Given the explicit standard which governs this determination, and the absence of evidence on the record as to the standard which the court applied in considering Aspen's motion for attorney's fees, we remand for the district court's reconsideration of the motion.14

The trial court's summary judgment Order and denial of plaintiff's attorney's fees is AFFIRMED. The matter is REMANDED for consideration of defendant's motion for attorney's fees in light of this opinion.